Research › Search › Judgment

Sikkim High Court · body

2011 DIGILAW 7 (SIK)

Mona Hang Subba v. State of Sikkim

2011-09-01

S.P.WANGDI

body2011
JUDGMENT S. P. WANGDI, Actg. C. J. (1) This Appeal is directed against the judgment and sentence dated 20-8-2010 in S. T. Case No. 17 of 2007 passed by the learned Sessions Judge, South and West Sikkim at Namchi, by which the accused-appellant has been convicted under Section 302 of the Indian Penal Code (in short 'IPC') and sentenced to undergo imprisonment for life and pay a fine of Rs. 5,000/-. (2) Brief facts of the prosecution case is that on 13-7-2007 a written report was received from L/NK 881850 Tara Bir Subedi of Sombaria P. S. at about 2124 hours stating that the appellant informed him on his mobile that he assaulted one Mahesh Subba with a Khukuri with the intention to kill him and that he wanted to surrender before the police. When he rushed to the house of the appellant he found him on the road in front of his house and, on being asked he directed him to Tin Dharey Kholsa, east of the house of the appellant. Upon reaching there he found the body of the victim lying in the ditch with multiple cut injuries. On evacuation of the victim to Sombaria P. H. C. the victim was declared dead on arrival by the Doctor present. P. S. Case No. 7(07)07 dated 13-7- 2007 under Section 302, IPC was registered against the accused-appellant and investigation taken up. On completion of the investigation it was revealed that the deceased Mahesh Subba had been harassing the accused-appellant in the past and extorting money from him. Deceased was related to the accused-appellant from his grandfather's side and were good friends in the past but the accused-appellant had been avoiding him due to his wayward behaviour. That victim had the reputation of a mischief monger and was a nuisance in the locality indulging in harassing his uncles and cousins whenever intoxicated. In the past, cases were registered against him for offences under Sections 488/ 385/147/149/427/354/323, IPC. He was also caught with the explosive materials during the election of the year 2004 and arrested under Soreng P. S. Case No. 27(04)2004 dated 26-4-2004 under Section 5 of the Explosive Substances Act, 1908. He was also associated with some political parties. In the morning of 13-7-2007, the accused-appellant had accompained the Upadhakshya, West Zilla Panchayat, Ms. He was also caught with the explosive materials during the election of the year 2004 and arrested under Soreng P. S. Case No. 27(04)2004 dated 26-4-2004 under Section 5 of the Explosive Substances Act, 1908. He was also associated with some political parties. In the morning of 13-7-2007, the accused-appellant had accompained the Upadhakshya, West Zilla Panchayat, Ms. Chandra Maya Subba, to Soreng to participate in the Bhanu Jayanti Celebration there and returned late in the evening on being given a lift by the Zilla Adhakshaya and was dropped at Daramdin Bazar along with one Smt. Surmit Subba and one Tulshi Subba. At Daramdin Bazar, the accused-appellant went to the market to buy some medicines but, finding the shop closed, he proceeded to his house alone. On the way he met the victim who apparently was under the influence of alcohol who caught the accused-appellant by the collar of his shirt and demanded money from him but he managed to free himself and flee from the spot. On reaching his room he left his mobile on the table and went downstairs to the kitchen adjacent to the main house. When he was serving his food he heard the victim climbing up to his room and leave after a while. The accused-appellant sensing something amiss went upstairs to check and found his mobile missing from the table. He went to his brother, Doma Hang Subba, living next to his house and narrated the episode to him requesting him to come along. When he called his mobile number from another mobile he found it switched off. The accused- appellant brother, Doma Hang Subba, met the deceased nearby on the new road with another person named Bikey Subba and asked to him to return the mobile phone of the accused-appellant but the victim refused and rather threatened him. By then the accused-appellant also arrived at the place and managed to get the mobile back from the victim on payment of Rs. 100/- after which they all dispersed to their respective residence. After sometime, the victim again returned to the house of the accused-appellant and called out to him and while doing so he was breaking window panes of the house and banging on the door abusing the appellant. Apprehensive that the door might be broken, the accused-appellant called out to the deceased and pleaded that he be allowed him to live in peace. Apprehensive that the door might be broken, the accused-appellant called out to the deceased and pleaded that he be allowed him to live in peace. As soon as door was opened the deceased was found standing at the door with knife in his hand with which he struck the accused-appellant who while taking evasive measures slit his right hand and started bleeding. The deceased then went out of the house shouting using foul language. The accused Rup Hang Subba, related to the deceased as his uncle, scolded the deceased for using such foul language and then went to the house of accused Rajesh Subba to call him. When accused Rajesh Subba did not respond the accused went back to the place where the deceased was. After a while, when the accused Rajesh Subba came to the spot on hearing noises, he saw Rup Hang Subba assaulting the deceased. When he tried to intervene the deceased challenged him also and started assaulting him with kicks and blows. As a result, the victim fell into the ditch of Tin Dharey Kholsa. In the meantime, the accused Doma Hang Subba and Ram Bahadur Subba, also came to the spot and joined them in assaulting the deceased with stick and blows. After a while accused-appellant came armed with a 'Bomfok' from his house and jumped into the ditch and struck the deceased repeatedly with the 'Bamfok' causing multiple deep cuts on the heads, legs, lower back of the victim resulting in the death of the deceased.Thereafter, the accused-appellant went back to his house leaving the murder weapon next to the toilet and called up L/ NK Tara Bir Subedi through his mobile and reported of the incident. As per the post-mortem report, the cause of the death of the deceased was due to multiple injuries with laceration of brain caused by sharp edged heavy weapon homicidal in nature. Charge-sheet was accordingly filed against the appellant and others under Section 302/34, IPC. During the trial, the other accused persons were discharged, there being no evidence against them. Upon enquiry and trial, the learned Trial Court found the appellant guilty under Section 302, IPC and accordingly convicted and sentenced him to undergo imprisonment for life with a fine of Rs. 5,000/- by the impugned judgment. During the trial, the other accused persons were discharged, there being no evidence against them. Upon enquiry and trial, the learned Trial Court found the appellant guilty under Section 302, IPC and accordingly convicted and sentenced him to undergo imprisonment for life with a fine of Rs. 5,000/- by the impugned judgment. (3) Before this Court, the only point that has been pressed in the appeal is that in consideration of the evidence and the facts and circumstances, the offence ought to have been under Section 304 Part I, IPC and not 302, IPC. (4) Mr. N. Rai, learned Senior Counsel appearing on behalf of the appellant, submitted that the action of the accused-appellant in assaulting the deceased which caused his death was on account of grave and sudden provocation on the part of the deceased. It is submitted that the victim had the reputation of being a notorious person in the village who indulged in extortion and bullying the people of the locality as the charge-sheet clearly reflects. Mr. Rai referred to the evidence of PW-5, Ms. Chandra Maya Subba, who was the Zilla Upadhakshya, West Sikkim which as per the learned senior counsel is an extra judicial confession and it clearly reflects that the deceased had indeed caused grave and sudden provocation resulting in the accused- appellant reacting violently whereby the deceased was killed. We may reproduce the relevant portions of the statement as under : ............After about 15 minutes of my arrival in my residence I receive a call through the accused in my cell phone who stated that as soon as he met with the deceased after he reached his house, he had a quarrel with Mahesh Subba (Deceased) as he smashed the window panes of his house and also assaulted him. The accused further said that he was also bleeding as a result of fight with the deceased. He also said that he could not tolerate the torture made by the accused and had killed him................" Cross-examination by the accused through the learned Legal Aid Counsel "It is true that the deceased was troublesome person and he used to torture the people of the locality. It is true that after the demise of the deceased the local people are now living in peace. It is true that after the demise of the deceased the local people are now living in peace. It is true that I have also heard previously that the deceased had broke the Khamba (Pillar) of the house of the accused..............." By referring to the statement of PW1, L/NK 8811850 Tara Bir Subedi, to whom the accused-appellant had communicated about the incident, it was submitted that the accused appellant had suffered a cut injury on his hand inflicted by the victim and was bleeding profusely therefrom. The relevant portion of the statement referred to by the learned senior counsel is reproduced below :- Cross-examination by the accused through the learned Legal Aid Counsel ".....................It is true that when I found the accused standing on the road there was a fresh cut injury in his hand and the blood was oozing out from the said wound. It is true that the accused told me that he said injury was inflicted to him by the deceased, by a Chupi.................." (5) The above statement of PW-1 as per Mr. Rai is corroborated by the medical evidence proved by PW-14 who was the Medical Officer In-charge, Sombaria P. H. C. through medical report Exhibit 12. The Character antecedent of the victim as being a notorious person as per Mr. Rai is proved by Suk Bahadur Tamang, I. O., PW-23, and following portions of the depositions was referred to by him :- Cross-examination by the accused through the learned Legal Aid Counsel "....................It is true that the deceased was a notorious person and he had criminal records at Sombaria as well as Soreng P. S. The victim was often given to getting involved brawls etc. and had cases registered against him u/S. 34 of Police Act. He was also involved in a case under the Explosive Act. It is true the incident occurred after the victim went to the house of accused to assault the accused. It is not a fact that he acted himself in his defence since the death of the victim occurred thereafter near the Kholsa." (6) In view of the above evidence appearing on the records, it was submitted by Mr. N. Rai that the offence for which the accused- appellant has been convicted ought to be converted to Section 304 Part-I, IPC and, therefore, the conviction and sentence be modified accordingly. As regards the principle of sentence, Mr. N. Rai that the offence for which the accused- appellant has been convicted ought to be converted to Section 304 Part-I, IPC and, therefore, the conviction and sentence be modified accordingly. As regards the principle of sentence, Mr. Rai referred to the cases of Bagdi Ram v. State of Madhya Pradesh : AIR 2004 SC 387; V. Sreedharan v. State of Kerala : 1992 Cri LJ 701 (SC): (AIR 1992 SC 754); Suresh Kanagraj Nadar v. state of Gujarat: 2003 Cri LJ 2668 (Gujarat) and Shingara Singh v. State of Haryana and another : 2004 CriLJ 828 (SC): (AIR 2004 SC 124) (7) Mr. J. B. Pradhan, learned Public Prosecutor in his fairness did not contest the proposition placed on behalf of the appellant and in fact, supported the contention. It was his submission that there are enough evidence to indicate grave and sudden provocation caused by the victim resulting in him being done to death by the accused-appellant. Mr. Pradhan, apart from referring to the evidence placed on behalf of the appellant, also drew the attention of this Court to the statement of the appellant recorded under Section 27 of the Indian Evidence Act, 1872, and his statement under Section 161 of the Code of Criminal Procedure, 1973 (in short the "Cr. P. C") record during investigation which as per him clearly corroborated the facts revealed by the PWs 2 and 5. (8) On the principle of the proposition 'grave and sudden provocation' Mr. Pradhan placed reliance in the cases of Arun Raj v. Union of India and others : (2010) 6 SCC 457 : (2010 AIR SCW 3359) and K. M. Nanavati v. State of Maharashtra : AIR 1962 SC 605 which need not be alluded to being a settled principle of law. It was submitted by Mr. Pradhan that although the defence of grave and sudden provocation and, therefore, the benefit of the case being converted one under Section 304 Part I, IPC, was never placed before the learned Trial Court yet in the interest of justice it would be permissible for this Court to consider that aspect and give him the relief if the accused-appellant is found entitled to under the facts and circumstances of the case. Reliance was made to the case of State of U. P. v. Lakhmi : (1998) 4 SCC 336 : (AIR 1998 SC 1007) the relevant portion of which is reproduced below : "17. The law is that burden of proving such an exception is on the accused. But the mere fact that the accused adopted another alternative defence during his examination under Section 313 of the IPC without referring to Exception I of Section 300 of IPC is not enough to deny him of the benefit of the exception, if the Court can cull out materials from evidence pointing to the existence of circumstances leading to that exception. It is not the law that failure to set out such a defence would foreclose the right to rely on the exception once and for all. It is axiomatic that burden on the accused to prove any fact can be discharged either through defence evidence or even through prosecution evidence by showing a preponderance of probability." (Emphasis supplied) When we proceed to examine the case before us on the anvil of the above law, I find that the unanimity in the stand of the learned counsel is quite justified. The evidence discussed above establishes without any doubt that the deceased severely provoked the appellant and got him so enraged that he lost control of himself and in the heat of passion, armed himself with the weapon of offence and, struck the deceased with the lethal blows using the weapon that caused his death. From the evidence of PW-1, L/ NK Tara Bir Subedi, and PW-5, Ms. Chandra Maya Subba, it can be safely concluded that the appellant knew that the injury inflicted by him to the deceased was so imminently dangerous that it was likely to cause his death and, that there was no pre-meditation by the appellant to commit murder. These facts emerging from the evidence clearly brings the offence within the ambit of Exception 4 to Section 300, IPC and, therefore, an offence under Section 304 Part I, IPC. (9) This Court is conscious of the law that statements under Section 161, Cr. These facts emerging from the evidence clearly brings the offence within the ambit of Exception 4 to Section 300, IPC and, therefore, an offence under Section 304 Part I, IPC. (9) This Court is conscious of the law that statements under Section 161, Cr. P. C, is not admissible in evidence except for the limited purpose as provided in Section 157 of the Evidence Act and, that there is also a serious embargo as to the scope of the evidence of the accused person taken under Section 27 of the Evidence Act which is only permissible to be used to the extent of discovery made as a consequence of such statement. However, it is felt essential to look into the two statements not as substantive pieces of evidence nor corroborative but, for the limited purpose of reassuring itself as to the truth in the statements of the witnesses referred to and relied upon. Having thus scanned the evidence, I am inclined to agree with the learned senior counsel and that there does not appear to be any doubt that the offence falls under Section 304 Part I, IPC. Accordingly, the conviction of the accused-appellant shall stand converted from Section 302, IPC to Section 304 Part I, IPC. (10) However, on the question of sentence, learned Public Prosecutor submits that considering the fact that the accused-appellant had inflicted 24 injuries on the body of the victim, the sentence ought to be on the higher side and prays that it should not be less than 7 years of imprisonment. Mr. N. Rai, on the other hand, submits that the accused-appellant has already suffered imprisonment for a period of 4 years 1 months and 16 days as on the date of the hearing, i.e., 28-8-2011, and, therefore, deserves more lenient sentence. On consideration of the facts and circumstances of the case, I am of the view that interest of justice would be served if the accused-appellant is sentenced for the period of imprisonment already undergone. (11) In the result, the Appeal is partially allowed and the impugned judgment and sentence of the learned Sessions Judge, South and West Sikkim, hereby stands modified to the extent stated above. (12) For the aforesaid reason, the accused- appellants shall be released from custody forthwith. No order as to costs. (11) In the result, the Appeal is partially allowed and the impugned judgment and sentence of the learned Sessions Judge, South and West Sikkim, hereby stands modified to the extent stated above. (12) For the aforesaid reason, the accused- appellants shall be released from custody forthwith. No order as to costs. (13) A copy of this judgment be transmitted to the learned Sessions Judge, South and West Sikkim at Namchi, for its due compliance. (14) Records of the learned Court below also be returned forthwith. Appeal partly allowed.